Is this one big college campus? University standards for adjudicating sex assault claims are infecting the Kavanaugh confirmation process

By K.C. Johnson

Sep 25, 2018 | 3:35 PM

How do we consider evidence fairly? (Jacquelyn Martin / AP)

On Monday night, as Sen. Ted Cruz and his wife arrived at a Washington restaurant, protesters started screaming at them: “We believe survivors! We believe survivors!” The couple left the scene.

The protesters did the nearly impossible: make Cruz look like a sympathetic figure. But they also showed how the debate over Brett Kavanaugh’s nomination to the Supreme Court features campus attitudes about sexual assault shaping the broader political discourse.

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Over the past several years, activists have championed an approach that presumes all campus sexual assault allegations to be true. As with Cruz’s protesters, the complainant is automatically billed a survivor, before any investigation occurs.

The more significant change came from the Obama administration, which used Title IX, the federal law banning sex discrimination in education, to force colleges to tilt the playing field in campus sexual assault cases. Direct cross-examination, even in instances depending solely on the credibility of the parties, is rare. In effect, accused students are presumed guilty and denied a meaningful opportunity to defend themselves.

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The Obama-era approach to Title IX sought to lower the standard of proof in campus sexual assault cases. As the Kavanaugh debate has raged, multiple Judiciary Committee Democrats, such as Richard Blumenthal and Mazie Hirono, have similarly suggested that Kavanaugh bears the burden of proof. Hirono even claimed that “how he approaches his cases” robbed Kavanaugh of the presumption of innocence.

Some state legislatures, including New York’s, codified the Obama-era standards, but only for college students. But in recent days, many Democratic legislators applied the assumptions behind Title IX tribunals more broadly. California Sen. Kamala Harris, for instance, conceded that a hearing would help determine the credibility of Professor Christine Blasey Ford, who accused Kavanaugh of sexual assault when both were teenagers. But, Harris informed CBS News, she did not need a hearing (or, it seems, even access to the specifics of Blasey Ford’s allegations) to know that she believed Blasey Ford.

Believing accusers (in any criminal allegation) as an article of faith was once solely associated with the far right. No longer.

Ironically, after Harris rushed to judgment, significant evidence has emerged undermining Kavanaugh’s credibility. The judge, for instance, portrayed himself to Fox News as a person of upstanding character as a teenager. But the contents of his high school yearbook, and the recollections of his freshman roommate, suggest otherwise.

Still, as in any fair process, truth-seekers should want to evaluate the credibility of both parties, not merely the accused. That’s too rarely done in campus Title IX tribunals. That a likely presidential candidate such as Harris embraced such a course raises broader concerns.

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The Kavanaugh debate features one important — but, unfortunately, negative — difference from the Title IX context. On campus, apart from groups of law professors at Cornell, Harvard and Penn, few voices have defended accused students, even on procedural grounds.

In the Judiciary Committee, however, most Republican members have embarrassed the Senate, exceeding their Democratic colleagues’ closed-mindedness. They opposed the FBI investigating the Ford allegation. Several, such as Orrin Hatch and Lindsey Graham, even made clear that they will believe Kavanaugh in any circumstance.

A Senate committee hearing, of course, is not a trial. This is a job interview, not a judicial proceeding. But the value of due process — access to relevant evidence, an opportunity to confront one’s accuser, decisions made by people who have not prejudged the case — comes not merely in protecting the rights of the accused, but in ensuring that a decision about contested claims has the best chance of accuracy.

We have already lost those safeguards in higher education, at least before Title IX tribunals. The Kavanaugh response suggests that the campus experience now will be shared more widely.

Johnson is a history professor at Brooklyn College and CUNY Graduate Center.